“The Secretary of State is not satisfied that you genuinely wish to establish in business as proposed”
“The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.”
“46. As its very wording shows, this provision lays down, clearly, precisely and unconditionally, an unequivocal 'standstill' clause, prohibiting the contracting parties from introducing new restrictions on the freedom of establishment as from the date of entry into force of the Additional Protocol. 54. It follows from the considerations set forth above that Article 41(1) of the Additional Protocol lays down a precise and unconditional principle that is sufficiently operational to be applied by a national court and therefore capable of governing the legal position of individuals. The direct effect which must therefore be accorded to that provision implies that the individuals to which it applies have the right to rely on it before the courts of Member States. 69. It should also be noted that the 'standstill' clause in Article 41(1) of the Additional Protocol precludes a Member State from adopting any new measure having the object or effect of making the establishment, and, as a corollary, the residences of a Turkish national in its territory subject to stricter conditions than those which applied at the time when the Additional Protocol entered into force with regard to the Member State concerned. 70. “It is therefore for the national court, which alone has jurisdiction to interpret its own domestic law, to determine whether the domestic rules applied to Mr Savas by the competent authorities have the effect of worsening his position in comparison with the rules which were applicable in the United Kingdom on the date on which the Additional Protocol entered into force in relation to that Member State.”
“4. The succeeding paragraphs set out the main categories of people who may be given leave to enter and who may seek variation of their leave, and the principles to be followed in dealing with their application, or initiating any variation of their leave. In deciding these matters account is to be taken of all relevant facts; the fact that the applicant satisfies the formal requirement of these rules to stay or further stay in the proposed capacity is not conclusive in his favour. It will for example be relevant whether the person observed the time limit and condition subject to which he was admitted; whether in the light of his character, conduct or associations it is undesirable to permit him to remain, whether he represents a danger to national security; or whether, if allowed to remain for the period for which he wishes to stay, he might not be returnable to another country.” “21. People admitted as visitors may apply for the consent of the Secretary of State to their establishing themselves here for the purpose of setting up in business, whether on their own account or as partners in a new or existing business. Any such application is to be considered on merits. Permission will depend on a number of factors, including evidence that the applicant will be devoting assets of his own to the business, proportional to his interest in it, that he will be able to bear his share of any liabilities the business may incur, and that his share of its profits will be sufficient to support him and any dependants. The applicant’s part in the business must not amount to disguised employment, and it must be clear that he will not have to supplement his business activities by employment for which a work permit is required. Where the applicant intends to join an existing business, audited accounts should be produced to establish its financial position, together with a written statement of the terms on which he is to enter into it; evidence should be sought that he will be actively concerned with its running and that there is a genuine need for his services and investment. Where the application is granted the applicant’s stay may be extended for a period of up to 12 months, on a condition restricting his freedom to take employment. A person admitted as a businessman in the first instance may be granted an appropriate extension of stay if the conditions set out above are still satisfied at the end of the period for which he was admitted initially.”
“An internal Home Office review estimated that approximately 60 per cent of the volume of appeals allowed are due to case working errors. The Administrative Review process when set up is intended to resolve such errors.”
“3. Can new evidence be submitted as part of the administrative review? New evidence cannot be submitted. This mirrors the current appeal process for in country Points Based System appeals. The only exception to this will be where the new evidence is relied upon to demonstrate that a previously submitted document is genuine or meets the requirements of the Immigration Rules.”
“What is administrative review? AR2.1 Administrative review is the review of an eligible decision to decide whether the decision is wrong due to a case working error. Outcome of administrative review AR2.2 The outcome of an administrative review will be: (a) Administrative review succeeds and the eligible decision is withdrawn; or (b) Administrative review does not succeed and the eligible decision remains in force and all of the reasons given for the decision are maintained; or (c) Administrative review does not succeed and the eligible decision remains in force but one or more of the reasons given for the decision are withdrawn; or (d) Administrative review does not succeed and the eligible decision remains in force but with different or additional reasons to those specified in the decision under review. What will be considered on administrative review? AR2.3 The eligible decision will be reviewed to establish whether there is a case working error, either as identified in the application for administrative review, or identified by the Reviewer in the course of conducting the administrative review. AR2.4 The Reviewer will not consider any evidence that was not before the original decision maker except where: (a) evidence that was not before the original decision maker is submitted to demonstrate that a case working error as defined in paragraph AR2.11 (a), (b) or (c) has been made; or (b) the evidence is submitted to demonstrate that the refusal of an application under paragraph 322(2) of these Rules was a case working error and the applicant has not previously been served with a decision to: (i) refuse an application for entry clearance, leave to enter or leave to remain; (ii) revoke entry clearance, leave to enter or leave to remain; (iii) cancel leave to enter or leave to remain; (iv) curtail leave to enter or leave to remain; or (v) remove a person from the UK, with the effect of invalidating leave to enter or leave to remain, which relied on the same findings of facts. AR2.5 If the applicant has identified a case working error as defined in paragraph AR2.11 (a), (b) or (c), the Reviewer may contact the applicant or his representative in writing, and request relevant evidence. The requested evidence must be received at the address specified in the request within 7 working days of the date of the request. AR2.6 The Reviewer will not consider whether the applicant is entitled to leave to remain on some other basis and nothing in these rules shall be taken to mean that the applicant may make an application for leave or vary an existing application for leave, or make a protection or human rights claim, by seeking administrative review.”
“AR2.11 For the purposes of these Rules, a case working error is: (a) Where the original decision maker’s decision to: (i) refuse an application on the basis of paragraph 320(7A), 320(7B), 322(1A) or 322(2) of these Rules; or (ii) cancel leave to enter or remain which is in force under paragraph 321A(2) of these Rules; or (iii) cancel leave to enter or remain which is in force under paragraph V9.4 of Appendix V of these Rules; or (iv) refuse an application of the type specified in paragraph AR3.2(d) of these Rules on grounds of deception, was incorrect; (b) Where the original decision maker’s decision to refuse an application on the basis that the date of application was beyond any time limit in these Rules was incorrect; (c) Where the original decision maker’s decision not to request specified documents under paragraph 245AA of these Rules was incorrect; (d) Where the original decision maker otherwise applied the Immigration Rules incorrectly; or (e) Where the original decision maker failed to apply the Secretary of State’s relevant published policy and guidance in relation to the application.”
“(d) A decision made on or after6th April 2015 on an application for leave to remain made by a Turkish national or their family member pursuant to the UK’s obligations under Article 41 of the Additional Protocol to the European Community Association Agreement (ECAA) with Turkey.”
“16. Report by Chief Inspector on administrative review (1) Before the end of the period of 12 months beginning on the day on which section 15 comes into force, the Secretary of State must commission from the Chief Inspector a report that addresses the following matters— (a) the effectiveness of administrative review in identifying case working errors; (b) the effectiveness of administrative review in correcting case working errors; (c) the independence of persons conducting administrative review (in terms of their separation from the original decisionmaker).”
“2.4 The inspection found that: the bulk of the AOs redeployed into the AR Team had no experience in Points Based System casework and limited experience of other immigration casework, with permanent staff in the minority; that quality assurance was ineffective; and that there was no evidence of cases being identified as complex and passed to EO caseworkers to review. While staff and managers in the AR Team considered the training they had received to have been adequate, file sampling indicated considerable scope to improve their understanding of relevant Immigration Rules, guidance and practice. … 2.7 File sampling indicated that valid applications were being incorrectly rejected and that the quality assurance process was not identifying and rectifying this. In four of the cases sampled the Home Office had conceded it was wrong, either when informed of the applicant’s intention to seek a Judicial Review (JR) or in advance of the JR hearing. Better initial decision making, by applying rules and guidelines correctly, and better quality assurance would have avoided the nugatory effort, cost and distress for the applicant of having to resort to a JR.”
“2.9 In addition to the 15 cases where the reviewer had identified caseworking errors, the inspection found a further 10 incorrect refusal decisions, according to the Immigration Rules and Home Office guidance, that the reviewer had missed, and six further cases where the decision was correct but one or more reasons were incorrect or missing. 2.10 While not always linked to the failure to identify errors, based on the case record and the AR response, in-country AR reviewers had not given adequate scrutiny to the issues raised by the applicant in over half the cases sampled. There was an overreliance on the initial refusal decision letter, with AR decision notices reiterating the previous grounds for refusal without addressing the applicant’s points.”
“2.29 Nonetheless, file sampling suggested that reviews of at the border ARs (which were the smallest in number) were generally less likely to result in the wrong outcome than overseas or in-country ARs. While the latter two were broadly similar in terms of the proportion of caseworking errors that reviewers missed, the success rate for overseas ARs was significantly higher in the file sample and according to Home Office management information. The latter put the rates at 22% and 21% for at the border and overseas ARs respectively, but at only 8% for in-country ARs. 2.30 Notwithstanding any comparison with the at the border and overseas success rates, in light of the Home Office’s own assessment in July 2013 of the extent of caseworking errors in Managed Migration cases that had been lost at appeal, the 8% in-country figure was much lower than might have been predicted based on the Home Office’s Impact Assessment. In the circumstances, it would have been reasonable to expect that the Home Office would look closely at the in-country AR process (including the rejection of applications as invalid) and assure itself of the quality of the decision making, as it had committed to doing in its Statement of Intent. … 2.33 Overall, there was a clear and pressing requirement for accurate data covering all aspects of the AR processes for incountry, overseas and at the border ARs. Internally, the Home Office needed this to inform its policy and practice, and to support learning. Externally, it was a prerequisite for reassuring Parliament and the public about the Home Office’s handling of challenges to immigration decisions where the right of appeal has been removed.”
“However, the Home Office was not yet able to demonstrate that it had delivered an efficient, effective and cost-saving replacement for the previous appeals mechanisms.”
“While the 1973 rules do not specify the types of documents to be submitted in support of a business application, you must assess if not providing relevant and/or requested documents undermines the credibility of the applicant’s business proposal.”
“Requests for further information You must decide on a case by case basis whether it is appropriate to request further information from the applicant. Where a refusal is based partly or wholly on the applicant failing to provide necessary documentation, you must make it clear in the decision letter why and how any missing documents led to a refusal. Verification You must verify the documents with the appropriate agency to determine if the documents are genuine, false or inconclusive if you have reasonable doubts that any supporting documents: • are genuine, including passports, or • do not reflect the claims made in the application. You can also conduct verification checks on key documents such as references and relevant business documents by contacting the provider in the usual way.”
“Interviewing applicants If you are unable to determine whether an application is genuine solely from the documents provided you must consider if it is necessary to interview the applicant in person. For example, you may have concerns about: • the authenticity of the documents provided • inconsistencies in the evidence provided • significant omissions in the documents required • the involvement of a third party in preparing the application • applications which appear to be identical with other applications previously submitted • the credibility of the application is in doubt.” • the authenticity of the documents provided • inconsistencies in the evidence provided • significant omissions in the documents required • the involvement of a third party in preparing the application • applications which appear to be identical with other applications previously submitted • the credibility of the application is in doubt.”
“Insufficient evidence In cases where the applicant does not provide sufficient evidence of their previous experience and/or qualifications relevant to the application, you must ask them to provide further written evidence. This may take the form of employer references and certificates. In cases where previous experience and/or qualifications are particularly relevant you may wish to consider interviewing the applicant.”
“In cases where the applicant does not provide sufficient evidence of proficiency in English and this is relevant to the application, you must ask the applicant to provide further written evidence of their fluency. This may take the form of an appropriate qualification in English or a certificate of attendance from a college where they are studying English. You must check that the evidence is correct and genuine. In cases where proficiency in English is particularly relevant you may consider interviewing the applicant.”
“Breach of conditions This page tells you about breach of conditions when a person is applying as a self-employed Turkish businessperson under the Turkish ECAA. Case law such as that of C-186/10 Oguz and Ascioglu v SSHD[2012] EWCA Civ 1183 established that applicants who have breached immigration law must still be assessed under the 1973 rules and not the more restrictive current Immigration Rules. Under the 1973 rules breaches of immigration law in business cases are covered by paragraph 4 of HC510. Just because an applicant has worked in breach of their conditions does not mean you must automatically refuse the case under paragraph 4 of HC510. Instead you must consider an applicant’s breach of immigration law on an individual basis. This is because a breach of conditions can vary in different ways and so have a different impact on a case. You must consider all the relevant circumstances of an application, but applicants must not normally be allowed to benefit from breaches in immigration law. This includes first time or repeat applications based on previously established businesses, or where there are only superficial changes such as a change in name, or change in the status of a business from sole trader to limited company. The following factors are relevant when you decide if an application, where a breach of immigration law has occurred, should be refused. An applicant: • Has overstayed a previous period of leave • Has entered or sought to enter the UK illegally • Has sought or obtained leave by deception such as making false representations or failing to disclose fact sin the application (fraudulent and abusive conduct) • Has breached their conditions of leave to enter or remain (for example, where the applicant started trading before the initial grant of leave and this put the applicant in a position to meet the requirements of paragraph 21, in circumstances where they should not have been able to do so otherwise) if an applicant has breached their conditions of temporary admission or has absconded from temporary admission • Has made an asylum claim that has been refused • Has previously used fraudulent or abusive conduct • Has demonstrated there is a material link between the current business proposal and previous fraudulent and/or abusive conduct • Whose conduct makes it undesirable to grant them leave for example where there is evidence of criminality • Is liable to deportation” • Has overstayed a previous period of leave • Has entered or sought to enter the UK illegally • Has sought or obtained leave by deception such as making false representations or failing to disclose fact sin the application (fraudulent and abusive conduct) • Has breached their conditions of leave to enter or remain (for example, where the applicant started trading before the initial grant of leave and this put the applicant in a position to meet the requirements of paragraph 21, in circumstances where they should not have been able to do so otherwise) if an applicant has breached their conditions of temporary admission or has absconded from temporary admission • Has made an asylum claim that has been refused • Has previously used fraudulent or abusive conduct • Has demonstrated there is a material link between the current business proposal and previous fraudulent and/or abusive conduct • Whose conduct makes it undesirable to grant them leave for example where there is evidence of criminality • Is liable to deportation”
“42. I have adverted several times above to the possibility of a face-to-face interview with the claimant, reflecting passages which I have quoted from the Secretary of State's own guidance document. When an applicant has a right of appeal to a judicial tribunal at which he can give evidence himself directly to the tribunal, the need for, and proportionality of, an interview at the earlier, administrative decision making stage may be less; but if and in so far as appeal rights have been removed, the need for an administrative interview may have increased. Save where there is powerful documentary evidence of a lack of genuineness, it is a strong thing, and likely to be unfair; for any decision maker to reach adverse conclusions as to integrity, credibility or legitimacy without, at some point in the process, the person concerned having the opportunity to answer questions and explain himself.”
“44. The Court has consistently held that, in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law (see, in particular, Rewe-Zentralfinanz eG v Landwirtschaftskammer für das Saarland (33/76) [1976] E.C.R. 1989; [1977] 1 C.M.L.R. 533 at [5]; Comet BV v Produktschap Voor Siergewassen (45/76) [1976] E.C.R. 2043 at [13]; Peterbroeck Van Campenhout & Cie SCS v Belgium (C-312/93) [1995] E.C.R. I4599; [1996] 1 C.M.L.R. 793 at [12]; Unibet at [39]; and Van der Weerd v Minister van Landbouw (C-222/05, C-223/05, C224/05 & C-225/05) [2007] 3 C.M.L.R. 7 at [28]). 45. The Member States, however, are responsible for ensuring that those rights are effectively protected in each case (see, in particular, Bozzetti v Invernizzi SpA (179/84) [1985] E.C.R. 2301; [1986] 2 C.M.L.R. 246 at [17]; Seim v Subdirector-Geral das Alfandegas (C-446/93) [1996] E.C.R. I-73 at [32]; and Dorsch Consult Ingenieurgesellschaft mbH v Bundesbaugesellschaft Berlin mbH (C-54/96) [1997] E.C.R. I4961; [1998] 2 C.M.L.R. 237 at [40]). 46. On that basis, as is apparent from well-established case law, the detailed procedural rules governing actions for safeguarding an individual's rights under Community law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see, in particular, Rewe-Zentralfinanz at [5]; Comet at [13]–[16]; Peterbroeck at [12]; Unibet at [43]; and Van der Weerd at [28]). 47. Those requirements of equivalence and effectiveness, which embody the general obligation on the Member States to ensure judicial protection of an individual's rights under Community law, apply equally to the designation of the courts and tribunals having jurisdiction to hear and determine actions based on Community law.”
“26. It should also be pointed out that the procedural rules governing issue of such a temporary residence permit must themselves be such as to ensure that exercise of the right of establishment conferred by the Association Agreements is not made impossible or excessively difficult. 27. It follows in particular that the scheme applicable to such temporary residence permits must be based on a procedural system which is easily accessible and capable of ensuring that the persons concerned will have their applications dealt with objectively and within a reasonable time, and refusals to grant a permit must be capable of being challenged in judicial or quasijudicial proceedings.”
“113… as long as all those elements can be reviewed and any administrative decision breaching those requirements can be annulled, an effective remedy under article 47 of the Charter does not require, in my opinion, the reviewing court or tribunal to have the competence to examine new evidence. Nor does it require it to establish facts not presented before the administrative authority, or to have the power to immediately substitute the administrative decision with its own judgment.”
“52… article 3(2) of Directive 2004/38 must be interpreted as meaning that the third-country nationals envisaged in that provision must have available to them a redress procedure in order to challenge a decision to refuse a residence authorisation taken against them, following which the national court must be able to ascertain whether the refusal decision is based on a sufficiently solid factual basis and whether the procedural safeguards were complied with. Those safeguards include the obligation for the competent national authorities to undertake an extensive examination of the applicant's personal circumstances and to justify any denial of entry or residence.”
“If you are unable to determine whether an application is genuine solely from the documents provided you must consider if it is necessary to interview the applicant in person. For example, you may have concerns about: • the authenticity of the documents provided • inconsistencies in the evidence provided • significant omissions in the documents required • the involvement of a third party in preparing the application • applications which appear to be identical with other applications previously submitted • the credibility of the application is in doubt.”
“The Secretary of State is not satisfied that you genuinely wish to establish in business as proposed”
“Therefore based on the information provided I believe this application is an attempt to secure leave rather than a genuine intent to establish in business”
“(a) The Defendant seems to allege that the business proposal lacks viability because the Claimant and her dependants entered the United Kingdom as visitors. (b) The business plan “lacks significant detail” with respect to customer service and marketing. (c) The lack of fluency in English. (d) The lack of a driver’s licence.” 5A. In oral submissions the focus was on items (c) and (d) and in her Amended Grounds for Judicial Review she raised the further complaint of “Failure to apply policy by asking for further information or interviewing the Claimant”
“Fluency in English is not a requirement of the 1973 business provisions but should be taken into account as part of the overall assessment of the evidence provided.” 11A. In my view, she can be taken to have understood this as included in her application was the statement: “I have basic English and planning to take extra lessons to improve it very quickly to be able to serve English speaking clients, leading for increase of sales (sic).” 12A. In her application for AR, Mrs Karagul contended that the “decision maker’s comments upon the applicant’s lack of English fluency were purely speculative”
“In your line of work, a driving licence would be essential in order for you to be a mobile beauty therapist, travel to customers with speed and efficiency and to transport your equipment”. 16A. Whilst the application for AR complained that the decision-maker had erred by remarking on the absence of a driving licence (“The applicant has a Turkish driving licence and is a competent driver”), I agree with the Secretary of State that this was to overlook the point that the omission of this important detail in her application counted against her in circumstances where she was purporting to be establishing in business as a mobile beauty therapist. 17A. In circumstances where Mrs Karagul had not explained that she was only proposing to use public transport and taxis, there was no error, procedural or otherwise, in the Secretary of State’s view that in order for her to establish in her stated business she would require private transport. (b) Ayten 18A. Mr Ayten’s application was refused under both paragraphs 4 and 21 of HC510. 19A. In terms of the former, the decision-maker noted that Mr Ayten had remained in the UK following the expiry of his leave after he became appeal rights exhausted on2 January 2015 . He failed to make any attempt to regularise his immigration status until his further ECAA application on6 July 2015 . The Claimant was an overstayer. 20A. I find the reasons for the refusal of the application under paragraph 4 incomprehensible. The reasons given were as follow (in their totality): “You have overstayed previous leave: You submitted an application on6th July 2015 , however your previous leave to remain expired on11th September 2013 . This was extended by virtue of 3C and 3D leave until2nd January 2015 . You therefore overstayed your previous leave by approximately six months. You therefore did not have leave to enter or remain at the time of your application. Your application for leave to remain in the United Kingdom has been refused and you no longer have any known basis of stay here. There is a material link between the current business proposal and previous fraudulent or abusive conduct: •You have used relevant experience while establishing as an illegal entrant in developing your current business proposal. The Secretary of State, having taken into account all the circumstances of your case, is therefore not prepared to exercise discretion in your favour in light of your conduct and character.” 21A. With respect to the caseworker these reasons seem to be a poor “cut and paste” job from parts of the Guidance with no real consideration of how the overstaying is said to be fatal. Specifically, there is no elaboration on what the claimed “material link” was between the current business proposal and earlier claimed “fraudulent and abusive conduct” (it also not being clear what this fraud and abuse was said to be). 22A. The Guidance correctly identifies that any breach of conditions is to be considered on an individual basis and cannot lead to automatic refusal of an application. Leading Counsel for the Secretary of State valiantly sought to explain what the reasons set out above were intended to refer to and how the Guidance was properly applied. I was unpersuaded. In short, this Claimant was not an illegal entrant and no link was identified in the decision letter between the overstaying and use of experience gained at that time to assist in developing the business proposal. The paragraph 4 decision would not have stood had the matter arisen for final decision. 23A. As to the paragraph 21 decision, Mr Ayten was said to be unable to show that he had genuinely established in business as claimed. The following reasons were provided: •You have used relevant experience while establishing as an illegal entrant in developing your current business proposal. (a) Lack of evidence showing control over the business. (b) Provision of a single stamped page of a bank statement the dates of which (29 January 2015 to27 February 2015 ) did not extend to the date he claimed to have started trading (18 March 2015 ). (c) The bank statement did not show any incoming transactions to demonstrate the financial position of the business. (d) Otherwise, failure to provide stamped bank statements verifiable as authentic. (e) Lack of evidence showing he was a signatory to the business bank account. (f) Lack of business accounts for 2015. Mr Ayten only provided a projected cash forecast for 2016. (g) Lack of evidence showing control over, or any input into, running the business. (h) Lack of evidence showing day-to-day responsibilities in running the business. (i) Lack of evidence showing that the invoices provided were genuine documents. 24A. As stated in the refusal letter, “Given your previous appeal this Department would have expected at a minimum that the concerns raised in the determination of15th December 2014 would have been addressed in any subsequent application - which you have not.” 25A. Further, it was concluded that “The Secretary of State is not satisfied that you have shown that you are actively concerned in the running of the business”